' This order will decide First Appeal from Order No,22 of 1994 which arises from order dated 26-1- 1994 of the learned Civil Judge, Sahiwal.
2. Material facts out of which this appeal has arisen are that a suit for recovery of Rs,9,99,838.91 was filed by the appellant under Order XXXVII, Rule 2, C.P.C. Against a Firm, Muhammad Amin, Muhammad Latif, etc. Which was decreed on 15-1-1987 by the learned District Judge, Sahiwal.
Appellant filed an execution petition in the Court of learned District Judge which was transferred to the civil Court. Warrant for attachment of immovable property of judgment-debtors was issued.
Five persons. Namely, Nawazish Ali, Mst. Razia Bibi. Tariq Amin laved Amin and Khalid Amin filed objection petition against the attachment and auction. Of the immovable properties of the judgment-debtors. During the pendency of the objection petition, the objectors were required to furnish security bond. In pursuance of the order surety bond dated 12-9-1988 was furnished by Sultan Ahmad (respondent herein) who undertook to pay an amount of decree upto Rs,11.00,000 on behalf of the judgment-debtors, in case of decision against the judgment-debtors. This surety bond was duly accepted by the Court on 13-9-1988.
3. Later objection petition was dismissed as withdrawn by the learned Civil Judge vide order dated 22-12-1988. In this situation, the appellant applied to the executing Court for the attachment of the properties of the respondent. At this juncture an application dated 22-10-1991 was filed by the respondent seeking rescission of order of attachment of his property on the ground that the objection petition was not decided on merit and was withdrawn, therefore, his property could not be attached. This application was dismissed by the learned Civil Judge vide order dated 26-1-1991.
' Not satisfied with the earlier order, the respondent repeated similar objections on 17-12-1992 and prayed that his surety be discharged as the objectors had withdrawn the objection petition. This application was allowed by the learned Civil Judge vide order dated 26-1-1994, impugned in the present appeal.
5. Learned counsel for the appellant argued that the respondent having furnished surety could not be absolved of his liability and was bound to pay the surety amount in terms of the undertaking as the objection petition stood dismissed. It was added that the second objection petition was not maintainable in law. Learned counsel while referring to the provisions of section 126 of the Contract Act and section 145, C.P.C. Contended that the liability of guarantor is co-extensive with the judgment-debtor, of which he could not be exempted but under erroneous assumption.
6. Learned counsel for the respondent vehemently opposed the appeal and argued that the appeal was not competent, the decree had been challenged under section 12(2), C.P.C. Which application was pending and, therefore, the decree being under cloud execution proceedings could not continue. Learned counsel submitted that the objection petition was allowed to be withdrawn with no order as to costs which would mean that the surety stood discharged. It was added that in any case the agricultural property of the respondent could not be attached nor the execution could be made against the respondent without determining that the judgment-debtor was a defaulter and that the amount of decree was due.
7. From the material annexed with this petition it is discernable that the suit for the recovery of Rs,9,99,838.91 filed under Order XXXVII of C.P.C. Was decreed on 15-1-1987. In execution proceedings warrants of attachment of the properties of the judgment-debtors were issued. At that stage objection petition was filed by the five objectors. The learned executing Court directed that the surety be furnished for the payment of decretal amount in the events of dismissal of objection petition. Accordingly with a view to have decision of the objection petition on merit, the objectors utilized services of respondent who opted to act as a surety on behalf of the objectors for payment of the derectal amount. Resultantly surety bond dated 12-9-1988 was furnished. The executing Court recorded the statement of the respondent, which was to the effect that in the proceedings for execution, the recovery of derectal amount of Rs,9,99,838.91 objections have been filed and that the judgment-debtors would remain bound to pay the decretal amount and that if the objection petition would be decided against them and decretal amount would not be paid by them, the surety would be bound for making payment of amount of decree and that his personal property inclusive of land and house could be used for recovery of the amount. On recording this statement satisfying that the surety was a man of means the executing Court accepted the surety bond.
8. Subsequently the objectors opted not to press the objection petition which was dismissed as withdrawn vide order, dated 22-12-1988. The order passed by the learned executing Court on the withdrawal of the objection petition was to the following effect:-- "In view of the statement of the learned counsel for petitioner recorded today, the application is hereby dismissed as withdrawn with no order as to costs. The file be consigned to record after completion."
9. From the above order, the respondent tried to build up that his surety was discharged. This was not the legal position. The using of the words "no order as to costs" would mean that the objection petition was dismissed without imposing any costs either under section 35 or section 35-A, C.P.C. It does not mean that the surety was discharged. As a matter of fact in accordance with the contents of surety bond and also the order under which the surety was furnished, the surety was liable to pay the amount of decree, if the objections would not be accepted and the judgment- debtors would fail to pay the decretal amount. The only requirement was that the objections should not be accepted or were dismissed, no matter the dismissal took place as a result of voluntary withdrawal or under the order of the Court. In this case the objection petition was withdrawn which would obviously mean that the same was dismissed as not pressed. By not imposing costs for wasting the time of the Court, the Court did not exonerate the respondent surety from his liability under the surety bond. The liability would arise under the contract with the decree- holder and undertaking to the Court given in terms of the order passed by the Court. Having given undertaking and agreed to pay the surety amount in the event of default of the judgment-debtors, the respondent/surety could not, under law, be allowed to escape the consequences by raising frivolous or flimsy objections. The plea raised being totally devoid of merit could not have been entertained or allowed. Section 145 of C.P.C. Provides that where a person becomes liable as a surety for the performance of a decree or a part thereof, the decree can be executed against him to the extent to which he had himself rendered personally liable, in the manner provided for the execution of decree and such person shall, for the purposes of appeal, be deemed to be a party within the meaning of section 47 of C.P.C. In this view of the matter, the appellant could successfully enforce the decree against the judgment-debtors or in the alternative against the guarantor. The liability of the guarantor being co-extensive with the judgment debtors the decree- holder had a right to enforce the decree straightway against the surety. The objection petition on the face of it was frivolous and liable to be dismissed.
10. There is substance in the submission of the learned counsel for the appellant that second objection petition was not maintainable. It is observed that the respondent earlier raised similar plea by filing objection petition against the order of attachment of property which was dismissed by the executing Court. In view of the earlier decision the second petition was not otherwise maintainable.
11. As regards the argument about competency of appeal, it is observed that under section 145 of C.P.C. The surety is deemed as party and objector with meaning of section 47 of C.P.C., and thus, appeal lies under section 104 of C.P.C. Against order deciding objection regarding excitability of decree against surety. The objection as to the executibility of decree or discharge thereof having been raised by the surety and allowed by the executing Court, the order would be appealable under section 104 of C.P.C. The objection is untenable and is accordingly repelled. As to the objection that the decree was under cloud it is observed that there is no stay against the execution of the decree and, therefore, mere pendency of application under section 12(2) of C.P.C. Will not suspend the preparation of the decree passed by the Court of competent jurisdiction.
12. Regarding the argument that default on the part of judgment-debtors has to be first determined, it is true that the recovery of the amount against the surety would only take place if the judgment-debtors have been found to be defaulters in discharging liability under the decree. It is not the case of the respondent that the judgment-debtors have paid the decretal amount or a part thereof. This being so the judgment-debtors are admittedly defaulters and, therefore, the appellant could ask for execution of the decree against the surety. Be that as it may, if the judgment-debtors have made any payment or the respondent has any proof of discharge of liability or a part thereof by the judgment-debtors he can raise objection before the executing Court which executing will positively attend and determine on merit. In the absence of any proof as to the discharge of liability by the judgment-debtors the executing Court can legally proceed against the surety for the recovery of the amount to the extent of decree.
13. For the reasons above the impugned order of the learned Civil Judge suffers from material illegality, perversity of reasoning and error of jurisdiction hence the same cannot sustain.
14. Resultantly this appeal succeeds, the impugned order is set aside and the objection petition filed by the respondent is dismissed. The case is sent back to the Court for further proceedings on the execution petition in accordance with law.